USCIS Receives 163,000 H-1B Applications for Fiscal Year 2009

In his congressional testimony in March, Microsoft Chairman Bill Gates said the shortage of H-1B visas was creating a competitive disadvantage for U.S. employers.

Employers filed approximately 163,000 H-1B petitions for high-skilled workers in the first five business days of April, more than enough to meet the congressionally mandated cap of 65,000 H-1B visas for all of fiscal year 2009 according to U.S. Citizenship and Immigration Services (USCIS).

The agency also said it received enough petitions to meet the cap of 20,000 additional H-1B visas reserved for applicants who hold advanced degrees from U.S. universities.

The H-1B rush leaves hundreds of thousands of U.S. employers and their prospective employees anxiously waiting to learn if USCIS's computer-based selection system has randomly chosen their petition for processing. USCIS conducted the selection on April 14 and has stated it will notify petitioners by June 2 if their petition was selected.

In anticipation of high demand, this year USCIS prohibited employers from filing multiple petitions for the same employee. The agency also kept the H-1B visa window open for five business days, a change from its previous practice of closing the process as soon as the annual cap had been reached.

The H-1B visa category allows U.S. employers to sponsor high-skilled, professional foreign-born workers for three years with the possibility of a three-year extension. To qualify for an H-1B visa, an applicant must have at least a bachelor's degree or equivalent experience as well as a job offer that requires "theoretical or technical expertise" in a specialized field.

Employers petitioning for H-1B workers must meet several labor market conditions, including paying the prevailing wage for the occupation. The H-1B category covers a range of occupations, including architects, engineers, scientists, computer programmers, accountants, and college professors.

Major business leaders, especially those in the high-tech industry, have been lobbying Congress for an increase in the annual H-1B visa numbers. In his testimony before the House Science and Technology Committee in March, Microsoft Chairman Bill Gates stated that the shortage of H-1B visas was leaving high-tech jobs in the U.S. unfilled, forcing companies to move their operations abroad and creating a competitive disadvantage for U.S. employers.

Congress first established an H-1 visa category for high-skilled foreign born workers in 1952 when it passed the Immigration and Nationality Act. In 1989, Congress split the H-1 visa category into H-1A and H-1B subcategories; in 1990, the annual number of H-1B visas was capped at 65,000.

During the high-tech boom of the late 1990s, Congress increased the annual H-1B visa cap to 115,000 for fiscal years 1999 and 2000.

Congress increased the H-1B cap again in 2000, to 195,000 visas for fiscal years 2001 through 2003, but included a provision to automatically revert to the original 65,000 cap in fiscal year 2004. In 2003, Congress established that 6,800 of these 65,000 H-1B visas would be reserved for nationals of Chile and Singapore under the terms of trade agreements with those two countries.

Thus, as of fiscal year 2004, only 58,200 H-1B visas have been available each year for applicants who are not from Chile or Singapore. In 2005, Congress created an "advanced degrees exemption" that allocates 20,000 additional visas for applicants who have received advanced degrees from U.S. universities.

Qualified H-1B workers who are employed by institutions of higher education or nonprofit/government research organizations are not subject to a cap.

To address the H-1B visa shortage, several bills have been introduced in Congress this year. On April 10, Senator John Cornyn (R-TX) introduced the Global Competitiveness Act of 2008, which would allow 115,000 visas for fiscal years 2009 through 2011 and would increase the number of visas for advanced-degree holders to 30,000.

The Innovation Employment Act, sponsored by Representative Gabrielle Giffords (D-AZ) on March 13, would exempt from the cap foreign-born students who received an MA or PhD degree in science, technology, math, or engineering.

The outcome of these bills is uncertain. Since the failure of comprehensive immigration reform in June 2007, Congress has been reluctant to pass bills that expand immigration benefits.

Other members of Congress have opposed the increase in H-1B workers, expressing concerns that H1-B workers adversely affect the employment opportunities of native-born workers.

Read the MPI Insight The Contributions of High-Skilled Immigrantshere.

All States Deemed Compliant with Real ID

All states have complied with the initial driver's license requirements in the Real ID Act despite opposition to the act in several state legislatures. States had until March 31, 2008, to meet the requirements or seek an extension.

Maine was the last state the Department of Homeland Security (DHS) deemed compliant. The state received an extension only after Maine Governor John Baldacci agreed to submit legislation that would prevent unauthorized immigrants from obtaining a state driver's license.

Many states have been granted extensions to comply with the act's licensing provisions, including states (Montana, New Hampshire, Oklahoma, South Carolina, and Washington) that had passed laws banning Real ID's implementation.

Residents in states that did not comply with the act before March 31 would not have been able to use state-issued driver's licenses to board airplanes or enter federal buildings beginning May 11, 2008.

Congress passed the Real ID Act in 2005 because the September 11 terrorists had easily obtained multiple state driver's licenses. Under the act, only U.S. citizens and legal residents can be issued licenses, and the licenses must have enhanced security measures, such as digital photographs.

Border Fence Deadlines. DHS Secretary Michael Chertoff has waived environmental and land management review for 492 miles of land along the Southwest border to expedite fence construction. Congress has required DHS to construct 700 miles of fencing along the Southwest border by December 2008. Under the Real ID Act of 2005, DHS has the authority to waive compliance with federal regulations (including regulations on environmental review) if the DHS secretary determines waivers are necessary for border security. This is the fourth time DHS has waived compliance with federal regulations for portions of the border.

Naturalization Backlog. The projected average processing time for naturalization applications now stands at 13 to 15 months, down from the 16-to-18-month projection USCIS made at the end of 2007. To reduce processing times, USCIS has expanded its workforce and increased funding for overtime. Also, it is using asylum office facilities and staff to conduct naturalization interviews. Processing times for naturalization applications soared after the agency received more than 1.4 million naturalization applications in fiscal year 2007.

FBI Name Checks. USCIS and the Federal Bureau of Investigation (FBI) announced a joint plan to reduce the waiting time for FBI name checks for various immigration benefits. The plan calls for increased staffing and resources and lays out a series of goals and deadlines. According to the plan, USCIS and FBI will attempt to resolve all name checks that have been pending for more than three years by May 2008 and all name checks that have been pending for more than two years by July 2008. By June 2009, the agencies' goal is to resolve 98 percent of all name checks within 30 days. Various immigrant advocacy groups and the USCIS Ombudsman had criticized the lengthy FBI name-check process, which delayed the processing of many immigration applications.

Arizona and Colorado Guest Worker Programs. State legislators in Arizona have proposed a state-run guest worker program. The Arizona program, detailed in Arizona House Bill 2863 and Senate Bill 1508, would allow Arizona employers with demonstrated labor shortages to hire workers from Mexico for two-year periods. An Arizona employer facing labor shortages could file an application with the Industrial Commission of Arizona. If the commission approved the employer's application, the employer would be able to recruit workers at a U.S. consulate in Mexico, and the Arizona Department of Transportation would provide those workers with temporary worker ID cards.

In a similar move, legislators in Colorado have introduced a bill that would establish a pilot program that allows agricultural workers to be recruited in Mexico and brought to the United States on an expedited basis under the existing H-2A program.

Proponents of both the Arizona and Colorado bills have said a state guest worker program is needed to help meet labor shortages. Whether states have the legal ability to establish their own temporary worker programs, however, is highly contested. Even the bill's supporters agree the program would need federal approval.

Rhode Island Executive Order. Republican Governor Donald Carcieri's March 27 executive order aims to deter illegal immigration by requiring state agencies and contractors to enroll in the federal E-Verify program. The order also directs the Rhode Island State Police to sign a cooperative agreement with Immigration and Customs Enforcement (ICE) so that state police officers can enforce certain immigration laws. In addition, the order gives state agencies expanded authority in notifying victims of identity theft. Several bills targeting unauthorized immigrants have also been introduced in the Rhode Island state legislature, including proposals to prohibit unauthorized immigrants from receiving welfare, workers' compensation, and disability benefits.